Citation Nr: 1721979
Decision Date: 06/14/17 Archive Date: 06/23/17
DOCKET NO. 13-32 113 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure.
REPRESENTATION
The Veteran represented by: Oklahoma Department of Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The Veteran and his friend
ATTORNEY FOR THE BOARD
Nicole L. Northcutt, Counsel
INTRODUCTION
The Veteran served on active duty from February 1952 to September 1954.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2010 and September 2012 by a Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran testified at a Board hearing in July 2015.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2).
In September 2015, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board requested a medical expert opinion from the Veterans Health Administration (VHA), which was rendered in February 2016. As the VHA medical expert indicated that the requested opinion could not be provided without certain radiological images, the Board remanded the case in June 2016 to obtain these images, as well as a new medical opinion reflecting review thereof.
FINDINGS OF FACT
1. The Veteran does not have asbestosis.
2. The Veteran's current respiratory disorder is unrelated to service, to include in-service asbestos exposure.
CONCLUSION OF LAW
The criteria for service connection for a respiratory disorder, to include as due to asbestos exposure during service, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
The Veteran is seeking service connection for his current chronic respiratory disorder, referred to as chronic obstructive pulmonary disorder (COPD) and asbestosis in treatment of record, which he asserts he developed as a result of in-service asbestos exposure.
Legal Criteria
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
With regard to the Veteran's contention that he incurred a respiratory disorder as the result of in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1, IV.ii.2.C. provides information concerning claims of service connection for disabilities resulting from asbestos exposure.
Asbestos is a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.
Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate).
The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id.
Analysis
The Veteran asserts that, while not specifically documented in his service treatment records (STRs), he began experiencing a respiratory impairment during service, and that this impairment has persisted since service. He posits his respiratory disorder began when he was exposed to asbestos while cleaning out ovens while serving in a bakery shop soon after he left boot camp, and while serving aboard the U.S.S. Kearsarge during periods when the vessel was in dry dock in Japan and San Francisco. The Veteran reports that he did not begin smoking cigarettes until after service and that he ceased smoking in 1999, and he asserts that his current respiratory disorder is unrelated to his history of tobacco use.
While the Veteran's available service personnel records do not specifically reflect that he was exposed to asbestos as part of his duties during his Naval service from 1952 to 1954 and while aboard the U.S.S. Kearsarge from 1953 to 1954, given his service aboard the World War II-era Naval vessel, the Board will find that the Veteran was exposed to asbestos during service.
The Veteran's STRs do not specifically show complaints, findings, or diagnoses of any respiratory problems. The first post-service respiratory treatment of record was created in November 2000, at which time the Veteran sought treatment for respiratory distress, at which time the Veteran reported that he had no respiratory problems until an episode of respiratory distress while vacationing in Reno, Nevada in January 2000, at which time he sought in-patient treatment and was administered breathing treatments, including oxygen, and was diagnosed with asthmatic bronchitis. During this November 2000 treatment, the Veteran further reported that while he had smoked approximately one to two packs of cigarettes per day for 46 years at the time of this January 2000 treatment (thus, since approximately 1954), he ceased smoking after this episode of respiratory distress requiring emergent care. Subsequent post-service private and VA treatment records show treatment for variously diagnosed respiratory disorders, including COPD; bronchitis; a tobacco use disorder; emphysema; pneumonia; pulmonary fibrosis; and pulmonary asbestosis.
In conjunction with the instant claim, the Veteran underwent a VA examination in August 2013, during which time the VA examiner concluded that the Veteran did not have asbestosis. However, private treatment records created subsequent to the August 2013 VA examination report include diagnoses or medical histories of asbestosis. In order to resolve this discrepancy, the Board sought a VHA medical opinion from a physician designated as a subject matter medical expert, hereinafter referred to as the VHA expert. However, while the VHA expert reviewed the Veteran's claims file, in an opinion authored in February 2016, the expert stated that he could not definitively state whether the Veteran had asbestosis, as well as COPD, without reviewing chest CT images that were not of record. Specifically, the VHA expert stated that while it is possible to have both COPD and asbestosis, and that the onset of the Veteran's respiratory symptoms in 1999/2000 is consistent with both the established latency after the onset of his cigarette smoking, causing COPD, and his reported in-service asbestos exposure, causing asbestosis, the VHA expert could not state whether the Veteran did in fact have both respiratory disorders without viewing the Veteran's actual chest computerized tomography (CT) images, as opposed to the radiological interpretations of these images, which is all that was of record.
In light of the VHA expert's indication that the Veteran's chest CT images are relevant to a determination as to whether the Veteran does in fact have an asbestos-related respiratory disorder, the Board remanded this case in June 2016 to obtain these images, if available, and if unavailable, to afford the Veteran a new chest CT study and associate those images with the record. The Board further instructed that after these images were obtained, the RO should obtain a new medical opinion considering this relevant evidence.
In accordance with the Board's remand directives, the RO obtained the Veteran's chest CT images from studies performed in April 2010, March 2013, July 2013, January 2014, and April 2014, and afforded the Veteran a new chest CT study in July 2016, associating those images, as well as the radiological interpretation thereof, with the record. The RO further afforded the Veteran a new VA respiratory examination in July 2016, and the examiner (who is an occupational health physician) reviewed the prior and current CT images in conjunction with this examination. After reviewing the Veteran's claims file (including records reflecting prior diagnoses of asbestosis), interviewing the Veteran (during which the Veteran disputed the accuracy of prior reports of his history of tobacco use), and conducting an examination of the Veteran, the examiner concluded that the Veteran's current respiratory disorders are COPD and a lung nodule, observed on several chest CT scans. Further, the examiner stated that the Veteran has never had an asbestos-related respiratory disorder, based on the examiner's comprehensive review of the clinical data of record. Specifically, the examiner cited the lack of crackles heard on lung examinations; the lack of any imaging studies consistent with the hallmarks of asbestosis; and the lack of findings on pulmonary functioning testing performed in 2012 (the last time the Veteran was physically able to perform this testing) consistent with restrictive asbestosis-related lung disease.
The Board finds that the July 2016 VA medical opinion is persuasive and the most probative evidence weighing against the Veteran's claim, as the opinion is clearly and unequivocally stated, supported by a detailed rationale, and consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). As to the prior references to asbestosis of record, the Board notes that many of these notations are based on the Veteran's reports of this diagnosis. Further, these diagnoses are not predicated on clinical data indicative of asbestosis, and the 2016 VA examiner similarly failed to find these diagnoses compelling, when concluding after a review of the record that "no evidence suggests the Veteran has asbestosis." Accordingly, this opinion outweighs any prior diagnoses of record and the Board concludes that the Veteran does not have asbestosis.
With regard to the Veteran's own statements and contentions that his respiratory disorder is related to his in-service asbestos exposure, the Board does not doubt the sincerity of the Veteran's assertions and such a theory is intuitively plausible. However, as the Veteran has no known or reported medical expertise, he lacks the requisite qualifications to render an opinion as to causation of his respiratory disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Indeed, the etiology of the Veteran's respiratory disorder is such a complex medical matter that multiple medical opinions and detailed medical findings were sought before a sufficient opinion could be rendered. Thus, the Veteran's lay assertions as to the correct diagnosis and causation are afforded no probative weight.
As to the Veteran's recent assertions that his cigarette smoking history has been inaccurately recorded and thus has been erroneously weighed by various medical providers, the Board notes that the Veteran's own reports of his tobacco use history have varied over time. In November 2000, he reported a 46-year, one-to-two pack per day cigarette-smoking history, ending in January 2000, and in subsequent records and during his Board hearing, the Veteran reported that he had ceased smoking in 1999 and had only smoked occasionally prior to this date, often not finishing a cigarette. Further, the 2016 VA examination report reflects the Veteran's denial of any history of cigarette use, whatsoever. Many years have passed since the Veteran initially reported that he ceased smoking in 2000, and thus, the passage of time may have clouded the Veteran own recollections of his history of tobacco use. The earlier reports are likely the most accurate as they were made in the course of treatment and not in a setting in furtherance of his claim.
In any case, whether and how much the Veteran used tobacco is not entirely germane to the disposition of this appeal, as the relevant query is whether the Veteran currently has a respiratory related to his in-service asbestos exposure, not whether his current respiratory disorder is related to his tobacco use. Indeed, the probative medical evidence of record establishes that the Veteran's current respiratory disorder is unrelated to his asbestos exposure, thus addressing the query dispositive of the appeal.
In sum, as the more probative evidence of record fails to substantiate service connection, particularly the nexus element of the claim, the preponderance of evidence is against the claim. Thus, there is no reasonable doubt to resolve on the Veteran's behalf, and service connection is not warranted for a respiratory disorder. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Service connection for a respiratory disorder, to include as due to in-service asbestos exposure, is denied.
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RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs